Justice Committee on Nov. 29th, 2006

[Sue Barnes, Liberal, London West, ON]

The other thing is prosecutorial discretion, which is not visible to the public, as a judge would be in a courtroom in sentencing. Here in Bill C-10 right now, there are a number of hybrid offences that are noted. If the Crown proceeds by way of summary conviction, as opposed to indictable, then there are mandatory minimums coming into play.

Mr. Borovoy, go ahead and tell me what you think of the prosecutorial discretion.

[Alan Borovoy]

As a matter of fact, what your point reminds me of is the comment that was made by the study done for the justice department when they said that juries may well be less willing to convict when the offence at issue contains a mandatory minimum. That's part of the problem: that it has such a distorting effect on the way justice is administered.

Incidentally, another one of the interesting findings of that survey that was done of judges a number of years ago is that about 95% of them said mandatory minimums lead to inappropriate plea bargaining at least some of the time. That's another example of how this distorts the justice system.

[Sue Barnes, Liberal, London West, ON]

Mr. Stewart, a lot of people are being led to believe that higher mandatory minimums or higher incarceration rates will be the deterrence factor, but could you give me some knowledge about police presence on the ground as a deterrence factor, in contrast to mandatory minimum sentences?

[Graham Stewart]

It has been well established in literature that the likelihood of apprehension is an important factor. I think that is borne out both in experience and in the data.

On the other hand, the notion that the penalty itself will be a deterrent is borne out neither by the literature, in my view, nor by my experience. I have been working in prisons for 38 years and I can't remember ever a circumstance where a person said that, given that the mandatory minimum was four years, he thought it was worth it, but now that it's going to be five years, there's no way he's going to consider that offence.

I haven't known anyone who knew what the mandatory was and I have had no one who ever gave any indication that it was part of his thinking. So I find the literature in fact confirms the actual experience that I've seen in the prisons.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you very much.

I imagine that my colleagues on both sides of the table will agree that this is truly a high calibre panel, providing mostly new information, and providing an excellent balance between science and a humane approach.

Mr. Petit, St. Thomas said that virtue lies in moderation. You studied the classics, I believe, and you will no doubt remember that.

First of all, I will address my remarks to Mr. Champagne. You are quite right in reminding us of the Archambault Commission's remark that the principles which must prevail in sentence determination, whistleblowing, rehabilitation and deterrence—to name but a few of the most important—include rehabilitation.

I will take advantage of the fact that you are a chaplain and frequently—if not every day, certainly very frequently—encounter people who have committed crimes. I presume some of those crimes are fairly serious.

How can an individual become rehabilitated? What connection is there between individual rehabilitation and monitoring, or supervision? In fact, the Canadian correctional system does not allow us to leave individuals unmonitored, even when they are on mandatory release.

Why is it important that we have rehabilitation programs? Has your day-to-day experience led you to have confidence in people's ability to change? How can the programs help them achieve that goal?

[Laurent Champagne]

Many inmates do want to get out and will do anything to achieve that. They try to find solutions, find people with whom they can make some progress. It is a mistake to tell them they are useless and worthless.

One fundamental aspect of this is that our current correctional system often does not take the victim into account, any more than it does the offender, because the Crown deals with them. Counsel for the defence and the crown prosecutor come to an agreement.

Experience has shown that those who undergo an unfortunate event together need one another to heal, but this is not something we can do on a large scale. We cannot transform all penitentiaries. When it comes to mediation, many, many victims and prisoners apply so that they can meet and try to deal with the issue.

[Réal Ménard, Bloc, Hochelaga, QC]

Are you the same Laurent Champagne who wrote a book on violence several years ago?

[Laurent Champagne]

No, I am not.

[Réal Ménard, Bloc, Hochelaga, QC]

The book was not on violence, but against violence. Thank you for your explanations.

Sometimes, we simply have to act and send people behind bars. Sometimes, the appropriate penalty is indeed imprisonment. We are not so naive as to believe there are no such cases. However, when it comes to determining sentences, the more we see the system attempting to seek maximum sentences, the more we become convinced that the deterrent power of minimum sentences has no scientific foundation. I think there is a good consensus here. At least among the opposition parties. The clerk, who is one of the most competent clerks of the House, sent us translated briefs every day that only confirmed that view.

The scientific literature does not support sentences. Do you understand the situation in which we, as lawmakers, find ourselves? Our government is asking us to pass legislation which runs counter to all probative and conclusive data available.

I found you to be very eloquent in your reasoning, and I will ask you the same thing again. Please explain why the scientific literature shows that we, as lawmakers, should not adopt a bill which is poorly drafted, poorly designed, and should not survive committee examination.

[Alan Borovoy]

I'm not sure I adequately understood your question, but I'm going to try.

Do I understand you're asking why scientific literature does not provide more support for this kind of legislation? It's probably because it doesn't exist. That's my best guess.

The studies have been done again and again and again, and while it's true there have been a handful of studies that appear to go the other way, in virtually every case there's something else that explains it.

For example, in the United States what happened is that they noticed in some cases that the crime rates were falling after the imposition of mandatory minimum sentences, but when they looked a little more carefully, they noticed that they had started to fall well before the mandatory minimums were adopted. Thus the level of violent crime was simply on the decline at that time, for a variety of reasons. It's virtually impossible to attribute that fall, though, to the existence of mandatory minimums.

So I think the best answer to your question is that it simply doesn't exist.

[The Vice-Chair, Liberal, Derek Lee]

Merci, Monsieur Ménard.

Ms. Wood wants to add something.

[Alexi Wood]

Yes, if there's time; it's just to add to what Mr. Borovoy already said.

First of all, please allow us to express our apologies. We did submit a brief, but as it was Monday we did not have time to have it translated. We do have copies, but they are in English only. I know that the clerk—

[Réal Ménard, Bloc, Hochelaga, QC]

The clerk will have the brief translated.

[Alexi Wood]

Yes. We do apologize for this.

[A voice]

English is one of the two official languages.

[Alexi Wood]

In our brief we cite several of the studies: one that was already mentioned by my friend, by Doob and Webster; there's another one, Doob and Cesaroni; there are several by Julian Roberts. There are several that are cited in our brief as well.

In addition, when this law was originally discussed, the Minister of Justice referred to four states in particular that had had mandatory minimums that had been successful. Despite written requests from our office to his office, we're not sure exactly which studies he referred to, especially in the case of New York.

In the Virginia study, there were actually three different things that had happened in Virginia, so it would be very difficult to pinpoint that mandatory minimums themselves were responsible for the reduction in crime. As I said, there were three different elements.

In Florida, for example, the legislative summary that was distributed actually concedes that there's no evidence that crimes were reduced by the efforts taken in Florida.

So even some of the statements that have been made saying these four states were successful once they implemented mandatory minimums are questionable.

[The Vice-Chair, Liberal, Derek Lee]

Thank you.

Monsieur Petit, vous aurez sept minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

First of all, Mr. Champagne, Mr. Stewart, Ms. Wood and Mr. Borovoy, thank you for coming here today.

First of all, I will make a brief preamble because there is something I want to understand clearly. Mr. Stewart, you tabled a French document that I have here with me. It contains graphs. One of those graphs supports your position, which is that people who are unemployed commit more crimes, or rather, more robberies.

I come from Quebec, where the unemployment rate is approximately 10% on average. That amounts to some 388,000 unemployed. We also have some 500,000 people on social assistance, because those people no longer receive employment insurance benefits. We have a manpower shortage of 17% to 18%, more or less. In Newfoundland and Labrador and New Brunswick, it's even higher than in Quebec, and you seem to be saying that in my province, Quebec, people are more likely to commit crimes, at least according to your study. Your study establishes a link between unemployment and violent crime.

I have been practising in Quebec for 35 years, and I do look at statistics because we have to plead sentences. God only knows how often we have to do that. So first of all, I can assure you that your link does not hold. It does not hold for Newfoundland and Labrador, because it is not true there are more criminals because there are more unemployed. That is not true.

However, I do have a question for you. In Alberta, people are rich, as they are in Ontario. They are richer than the people of Quebec, the people of Newfoundland and Labrador, and the people of New Brunswick. However, Alberta and Ontario have the highest numbers of criminals.

How do you explain that there is a higher number of robberies in a rich province, when you are trying to tell us that poor people in the poorer provinces are those who commit the most crimes? Your reasoning does not hold water. I would like to know why there are more criminals committing robberies with firearms in the rich provinces, and fewer in the poorer provinces.

I would like to hear your answer, Mr. Stewart.

[Graham Stewart]

With respect, that's not what the chart shows. What the chart shows is changes in unemployment rate and changes in robbery. What we're saying is, regardless of where you are in Canada, regardless of the overall wealth, where you see changes in unemployment rates you see—in fact, very quickly following—changes in robbery.

This is data that was produced by Statistics Canada. The point of putting it here is to show that factors such as these have a very clear and dramatic parallel—between these two factors—whereas you cannot find any similar parallel with sentencing.

I was not suggesting that unemployment was the sole cause of crime, however; it's much more complex than that. Within given communities, there are all sorts of other factors that can compensate for things such as unemployment. For instance, disparity of income appears to be far more important than rates of income. But overall, when you look at the trends, there seems to be a correlation between the two.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I understand. However, since you have tabled this brief—which I will have to read—and the graph, it is because you are trying to draw some conclusions from it. According to the graph, when unemployment goes up... In Quebec, average unemployment has been almost 10% in the past 40 years. And there are huge numbers of people on welfare. In Quebec as a whole, that's about 680,000 people, and you are trying to tell me there is a connection here.

If there is no such connection, why did you attach this graph? Was it to persuade us of something? I live in Quebec and I can tell you that connection is not there. Forget about it.

So I would like to know why you have attached this graph. What are you trying to tell us, since you are not seeking to arrive at some conclusion?

[Graham Stewart]

What I was saying was that your interpretation of the chart was wrong, not that the chart was wrong. I was trying to illustrate that other factors can explain variations of crime much better than sentencing. What I was saying, for instance, with this chart and the previous chart, was that you cannot explain the variations in crime across Canada by sentencing policy. The fact that violence can be very high in one area and very low in another is not something you can attribute to differences in policing, differences in courts, differences in prisons, or differences in sentencing.

In Canada, we have a single federal Criminal Code. We have very similar policing structures and abilities. If you're going to say, for instance, that in one community, such as Regina, over a ten-year period you saw a 50% increase in violent crime, whereas in another, such as St. John's, you saw a 50% decrease in the same period, clearly that's not attributable to sentencing.

Similarly, variations in important economic conditions, such as rates of unemployment, do produce changes in terms of crime that you cannot identify.... You cannot find similar data anywhere that shows that changes in sentencing policy would do the same.

My point was that if you want to do something about serious violent crime, work on the problems that actually will produce results. Endlessly playing with sentencing will simply not do it. There's just no evidence that it will achieve that goal.

[The Vice-Chair, Liberal, Derek Lee]

Mr. Petit, you have the floor. You have two minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Stewart, I would like to draw your attention to the graph I submitted to the committee. I cannot tell you on what page this is, since the pages are not numbered. This comes under Figure 3. I will read what you have written so that I can put it on the record. Please listen carefully to what you are telling me, and telling the committee:

The correlation between an important economic indicator like unemployment with robbery is compelling. Taken together, data such as these make a convincing of case for initiatives that tackle the strongest factors that determine crime rates—social conditions. If the intention of Bill C-10 is to reduce gun crime, then it is clearly not addressing those factors that actually give rise to gun crimes and cannot be successful.

I will put the question again, because what you are saying is not true. In Quebec, the unemployment rate is higher than anywhere else in Canada, and has been for the past 40 years. We have wall-to-wall welfare cases, and that contradicts your statement. So I would like to know why you made that statement. Is it to influence our work here, or is it a genuine observation?

[Graham Stewart]

This is not my chart. This is Statistics Canada. If they produced false data, then I guess we should ask them.

You keep saying this is a direct relationship between unemployment and crime. What the chart is showing is that differences in unemployment seem to correlate very strongly with differences in robbery. These are the two parallels. The point of the chart was to show that variances in social conditions can explain variances in crime quite effectively, while there is no similar chart that anyone can produce that would show similar variations in sentencing affecting variations in crime.

My point was a very simple one, and this is only illustrative of one of many factors that could be contributing to crime. If we want to reduce crime and are very serious about it, are we going to put all our attention and effort into measures for which there is no evidence of their having any impact, or are we going to concentrate our efforts on those factors that appear to have a strong correlation?